Smoking suit may be moot

April Washington

Originally published 03:20 p.m., November 15, 2007
Updated 03:20 p.m., November 15, 2007

Justices with a federal appeals court said today that a lawsuit challenging the state's smoking ban as unfair to neighborhood bars and private clubs may be waste of time because casinos must go smoke free New Year's Day.

Joel Spector, an attorney representing bar and private club owners, argued the law still discriminates because it continues to give the smoking lounges at Denver International Airport and cigar bars a free pass.

In the year since the smoking ban took effect, numerous bars have suffered financially with about 70 taverns going out of business, Spector said. Meanwhile, casinos were given more than a year to prepare to go smoke free and buffer their businesses from the financial hit, Spector said.

"If unequal protections in the constitution matter, it means government can't discriminate against one class of people in favor of another class of people," he said. "Certainly, the government shouldn't be allowed to do that just to protect the economic interest of the state."

That argument may be a tough sell with at least one of the justices on the three-judge panel.

"The law clearly indicates you don't need to regulate an entire problem," said Senior Judge David Ebel. "Why can't Colorado say we want to solve a tobacco problem in other places, but allow smoking at DIA?"

The 10th Circuit Court of Appeals heard arguments in the Coalition for Equal Rights' appeal seeking to overturn a district judge's ruling upholding the Colorado Clean Indoor Air Act. It could be up to three months before the federal court rules.

The three federal court justices hearing the case told Spector he has a real uphill battle to show why the court should overturn the statewide smoking ban.

The justices said the U.S. Supreme Court has routinely allowed states to carve out rational exemptions in such bans.

Jason Dunn, an attorney representing the state of Colorado, argued that the legislature has since repealed the casino exemption, making the lawsuit moot.

On Jan. 1, the smoking ban will extend to gambling parlors in Black Hawk, Central City and Cripple Creek.

Dunn said the legislature gave casinos 18 months to go smoke free because of economic considerations.

The casinos are in isolated mountain towns where economies rely heavily on gaming for revenue and employment.

Dunn also defended the exemptions in DIA and cigar bars, arguing tight security prevents travelers on layover flights from leaving the airport.

In the case of cigar bars, a majority of their revenue is derived from tobacco sales.

Bar owners gathered at the federal courthouse today said the smoking ban has wrecked their ability to make a living, and in some cases has sucked away their savings and destroyed their lives.

Come New Year's Eve, Billy's Tavern in north Denver will shut its doors — a day before the bar would have celebrated its 40th anniversary.

"This bar has been in the same family for 40 years," said James Vonfeldt, owner of the bar at 4403 Lowell Blvd. "They (lawmakers) have taken away my whole life. This bar was my 401-k. The first six months of the ban I lost 40 percent of my business and haven't recovered."

• November 15, 2007

  5:01 p.m.

  Suggest removal

  CastleMan writes:

  April, the term "justice" or "justices" is not appropriate when referring to federal circuit court of appeals judges. It is proper to refer only to the judges of the U.S. Supreme Court, state supreme courts, or the state trial courts in New York as "justices." All other members of the judiciary should be referred to as "judge" or "judges."